Post-Conviction

the representation of state and federal defendants Post-conviction

KCPM’s significant post-conviction practice includes the representation of state and federal defendants on direct appeal in Virginia’s appellate courts, the Fourth Circuit, and United States Supreme Court.  We also litigate petitions for writs of habeas corpus in Virginia’s circuit and federal courts (also known as 2255 or 2254 motions in federal court) and appeals therefrom.   Underscoring our post-conviction experience, KCPM lawyers have taught continuing legal education courses on post-conviction relief (state habeas and state appeals) to other attorneys and personally argued numerous cases before various appellate courts.

As part of our practice, we often handle or consult on post-conviction matters related to the immigration consequences of criminal convictions.  In light of Padilla v. Kentucky, 555 US 1169 (2010), criminal defense counsel is required to accurately advise a defendant on the immigration consequences of a criminal conviction.  Unfortunately, many defendants are incorrectly advised as to the immigration consequences of convictions and face potential detention and deportation due to entering into ill-advised plea agreements.  The sooner such errors are identified, the more options exist for remedying the situation through post-conviction litigation.

Virginia Criminal Appellate Procedure

Virginia appellate procedure is governed by the Virginia Rules of the Supreme Court.  In general, a defendant in a Virginia circuit court seeking to appeal a conviction must file a notice of appeal to the Virginia Court of Appeals with the circuit court clerk within thirty days of the entry of the final sentencing order.  Subsequently, the defendant will file a petition for appeal with the Virginia Court of Appeals.

If the petition is denied, the defendant may demand oral argument before a three judge panel of the Court of Appeals in an attempt to convince the court to award an appeal.  If the petition is again denied, the defendant may file a notice of appeal to the Virginia Supreme Court with the clerk of the Court of Appeals and petition the Virginia Supreme Court to award an appeal.  Oral argument can be demanded in the Virginia Supreme Court as well in an attempt to convince the court to award an appeal.

If the Virginia Court of Appeals or Supreme Court grants a petition (awards an appeal) in whole or in part, then it has agreed to hear the appeal on the merits, requiring additional briefing and oral argument before the court provides a written decision.  If the defendant is ultimately unsuccessful in the Court of Appeals after an appeal has been awarded and decision rendered (and any rehearing request has also been denied), he may then note his appeal to the Virginia Supreme Court and petition the Virginia Supreme Court to award an appeal.  If ultimately unsuccessful in the Virginia Supreme Court, and the case has a federal or constitutional issue, the defendant may petition the US Supreme Court for a writ of certiorari.

Since Virginia’s appellate courts have discretionary authority to award an appeal (that is, the appellant must first petition for a merits hearing on the appeal), it is important that appellate petitions have clear questions presented, accurately state the underlying facts, cite relevant persuasive and binding authority, and persuasively present the defendant’s case to convince an appellate court to accept it.  That is, the petition should be treated as if it were the main or opening appellate brief.

When a defendant prevails on appeal, the appellate court may reverse the trial court and remand the case (or count at issue) for a new trial if the prosecution be so advised or, if the issue was sufficiency of the evidence, dismiss the case (or count at issue).

  • “Mr. Ryan Campbell is The Great Lawyer! Very knowledgeable about the law and had my case dismissed!” - Eduardo O.
  • “My case became so complex and Evelyn managed to be one step ahead each time. She kept me updated at every step.” - Rinku S.
  • “Mr. Sherlock is definitely for the people he represents.” - Evin R.

Defendant’s Decision to Appeal

We recognize that it is the defendant’s decision to appeal and can aid in advising whether pursuing an appeal is appropriate. Important criteria to consider in determining to pursue an appeal include whether there are meritorious appellate issues, the consequences of the conviction, the remedy if the appeal is successful (a new trial or dismissal?), and the financial and emotional costs of appeal.

Federal Criminal Appellate Procedure

Fourth Circuit appellate procedure is governed by the Federal & Local Fourth Circuit Rules of Appellate Procedure.  Federal defendants seeking to appeal a federal district court conviction to the United States Court of Appeals for the Fourth Circuit must file a notice of appeal within 14 days in the district court.

Soon after the notice of appeal is filed, the attorney for the defendant-appellant will be required to file a docketing statement with the Fourth Circuit that will include basic information about the case and outline likely issues to be raised on appeal.  The docketing statement issues are non-binding.  The Fourth Circuit will then determine a briefing schedule.

Unlike Virginia’s appellate courts where a litigant can demand oral argument if a petition for appeal is refused, there is no right to oral argument in the Fourth Circuit.  The court has discretion to grant oral argument or decide an appeal on the papers.

If the defendant-appellant is not successful in the Fourth Circuit, the defendant may petition the US Supreme Court for a writ of certiorari.

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Writs of Habeas Corpus and Other Post-Conviction Relief

If a direct appeal is unsuccessful, mishandled, or is not appropriate to pursue, the firm handles habeas claims of ineffective assistance of counsel and other constitutional violations. The firm has also litigated other post-conviction relief, including motions to set aside the verdict and writs of coram vobis. Notable post-conviction cases include:

  • Order to Amend Nunc Pro Tunc granted to conform a sentence in a motion to Amend Nunc Pro Tunc granted to conform a marijuana deferred disposition to the holding of Crespo v. Holder, 631 F.3d 130 (2011) in order to remedy potential immigration consequences. Alexandria General District Court, December 2017.
  • Motion to Set Aside the Verdict granted after defendant was convicted of malicious wounding, use of a firearm in the commission of a felony, violent felon in possession of a firearm and gang participation charges, winning defendant a new trial, based on Brady violations.  The matter was thereafter resolved by a plea agreement to unlawful wounding and gang participation charges with the firearm charges being dropped. Alexandria Circuit Court, March 2016.
  • Motion to Reconsider granted by Prince William County General District Court to amend defendant’s marijuana conviction to non-drug offense due to immigration consequences flowing from marijuana conviction. Prince William General District Court, 2013
  • Petition for writ of habeas corpus granted by Fairfax Circuit Court, vacating petitioner’s felony possession with intent to distribute marijuana conviction, where trial counsel failed to advise the petitioner of the immigration consequences of his guilty plea. Fairfax Circuit Court, 2013.
  • Motion to Set Aside the Verdict granted in rape case, winning defendant a new trial after the jury recommended a 28 year sentence, based in significant part on new evidence. The prosecution soon after dismissed the charges. Brad Haywood of Sheldon, Flood & Haywood and Joseph King represented the Defendant. Alexandria Circuit Court, September 2012.

If considering filing a writ of habeas corpus, it is important for the petitioner to understand that post-conviction challenges face many hurdles. In this regard, it may be appropriate for the firm to first review the case to determine whether a habeas would be worth litigating. It is also always important to keep in mind the tight time limits on filing for habeas relief, which should be the first thing counsel does when considering a potential habeas matter so as not to take a case and then let the time period for filing the habeas run.

RECENT KCP APPELLATE AND POST-CONVICTION HIGHLIGHTS

  • In August 2022, Joseph King succeeded in vacating and dismissing a 2005 criminal conviction on behalf of client due to a Virginia district court’s lack of subject matter jurisdiction. The client, a juvenile at the of the allegations, had been incorrectly charged and convicted as an adult.
  • In July 2022, KCPM successfully expunged three felony counts in a Northern Virginia Circuit Court on behalf of a client. Two of the matters had been amended to misdemeanors to which the client had pled guilty. The original felony charges were subject to expungement because the misdemeanors were not lesser included offenses.
  • In August, 2021, Joseph King obtained an order in a Virginia district court larceny matter that resulted in reducing the client’s sentence to conform with the petty offense exception of the U.S. Immigration and Nationality Act found in 8 U.S. Code 1982 to mitigate immigration consequences resulting from the conviction.
  • On January 4, 2021, Joseph King and Lauren LeBourgeois filed a petition for a writ of certiorari in the United States Supreme Court to the Virginia Supreme Court seeking review of a client’s murder conviction.  The issues presented were 1) Does the Confrontation Clause allow a non-victim child witness to testify against his father via two-way closed circuit television when the witness cannot see his father and does not know that his father is on trial for murder?; and 2) Given that Crawford v. Washington, 541 U.S. 36 (2004), removed the underpinnings of Maryland v. Craig, 497 U.S. 836 (1990), should Craig be overruled? The petition can be found here. The petition received notice from the popular SCOTUS blog as a petition to watch, however, the Court ultimately denied the petition.
  • On June 24, 2020, a judge in the United States District Court for the Eastern District of Virginia granted a motion for compassionate release filed on behalf of an indigent client due to the COVID-19 pandemic.  The motion was granted over the government’s opposition.  The client, who is elderly with underlying health conditions, was serving a 30-month sentence for a non-violent drug offense after being sentenced in February 2020.   The endeavor to release the client was a team effort involving the firm’s office manager, a private investigator, a close friend of the client and family in California, U.S. Probation, and firm attorneys.
  • On January 7, 2020, the Fourth Circuit vacated and remanded the United States District Court for the Eastern District of Virginia’s decision dismissing a 28 U.S.C. § 2255 motion (habeas motion) in the matter of United States v. Dixon (4th Cir. No. 16-7752)(Jan. 7, 2020).  In his 2255 motion, Dixon had challenged his firearm conviction under 18 U.S.C. § 924(c) (for possessing a firearm in furtherance of a crime of violence where the underlying offense was conspiracy to commit Hobbs Act robbery) as void based on Johnson v. United States, 135 S. Ct. 2551 (2015).  That is, Dixon contended that his firearm conviction was void because Johnson v. United States, 135 S. Ct. 2551 (2015), retroactively invalidated § 924(c)(3)(B), that statute’s “residual clause,” as unconstitutionally vague. The Fourth Circuit held: “In light of United States v. Davis, 139 S. Ct. 2319, 2336 (2019) (holding that residual clause of § 924(c) is unconstitutionally vague); United States v. Simms, 914 F.3d 229, 232-34 (4th Cir. 2019) (holding that conspiracy to commit Hobbs Act robbery is not a crime of violence under the force clause of § 924(c)), we grant a certificate of appealability and vacate the district court’s order.”  Joseph King represented Mr. Dixon in both the Fourth Circuit and Eastern District of Virginia.
  • On September 30, 2019, the matter of Adkins v. Commonwealth resolved as manslaughter in the Alexandria Circuit Court after the Virginia Supreme Court reversed his murder conviction and 43-year prison sentence.  Mr. Adkins will serve 8 years for manslaughter and an associated gun charge.  See Rachel Weiner, Alexandria Murder Conviction Changed to Manslaughter, Washington Post, October 1, 2019.  Joseph King and Lauren LeBourgeois represented Mr. Adkins in the Virginia Supreme Court. Firm lawyers also represented Mr. Adkins in his original jury trial.
  • On August 13, 2019, the Virginia Court of Appeals affirmed a client’s first degree murder conviction, which decision was appealed to the Virginia Supreme Court.  The petition for appeal, which was ultimately denied, to the Virginia Supreme Court can be found here.
  • On March 28, 2019, the Virginia Supreme Court reversed Appellant’s murder conviction in the matter of Adkins v. Commonwealth.  Joseph King and Lauren LeBourgeois represent the Appellant on appeal.
  • On March 8, 2019, the Virginia Court of Appeals awarded an appeal in Anthony Terry v. Commonwealth, a drug conspiracy and distribution matter.  Emily Beckman represented the Appellant. The Court of Appeals ultimately affirmed Terry’s conviction.
  • On February 28, 2019, Joseph King argued the murder case of Rashad Adkins v. Commonwealth before the Virginia Supreme Court.  Joseph King and Lauren LeBourgeois represent the Appellant.
  • On January 16, 2019, the Virginia Court of Appeals awarded an appeal on seven assignments of error in the first degree murder case of Dilshad Dosky v. Commonwealth.  Joseph King represents the Appellant.
  • On October 2, 2018, the Virginia Supreme Court awarded an appeal on two assignments of error in the murder case of Rashad Adkins v. Commonwealth. Joseph King and Lauren LeBourgeois represent the Appellant.

(CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE AND PAST CASE RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE)

Direct Appeals and Appellate Advocacy

In preparing and arguing appeals, we thoroughly review the trial court record and strive to prepare well-researched and persuasive petitions and briefs (see sample brief)–focusing on the strongest issues in order to present compelling questions to appellate courts.

Notable appeals handled by our lawyers include:

  • United States v. Dixon (4th Cir. No. 16-7752)(Jan. 7, 2020)(vacating and remanding the United States District Court for the Eastern District of Virginia’s decision dismissing a 28 U.S.C. § 2255 motion (habeas motion) where in his 2255 motion, Dixon had challenged his firearm conviction under 18 U.S.C. § 924(c) (for possessing a firearm in furtherance of a crime of violence where the underlying offense was conspiracy to commit Hobbs Act robbery) as void based on Johnson v. United States, 135 S. Ct. 2551 (2015)).
  • Rashad Adkins v. Commonwealth, No. 180485 (Va. S. Ct. – March 28, 2019)(reversing Virginia Court of Appeals affirmation of the trial court’s denial of Appellant’s motion to suppress his statement where the Appellant invoked his Fifth Amendment right to remain silent upon stating he had nothing more to say to a police detective; reversing and remanding for a new trial, if the Commonwealth be so advised, Appellant’s convictions for second degree murder and use of a firearm thereof for which Appellant had received a 43 year sentence).
  • Dilshad Dosky v. Commonwealth, No. 1771-77-4 (Va. Ct. App. Aug. 13, 2019 – affirming Appellant’s murder conviction where any errors by the trial court were harmless in light of evidence and no juror bias found)(on appeal to Virginia Supreme Court).
  • Brent David Taylor v. Commonwealth, No. 1031-14-4 (Va. Ct. App. Sept. 13, 2016)(reversing appellant’s convictions for rape and aggravated sexual battery and remanding for new trial where trial court erred in failing to suppress appellant’s statement as gained in violation of 5th Amendment rights under Miranda v. Arizona).
  • United States v. William Andrew Clarke, ___ F.3d ___ (4th Cir. 2016)(upholding trial court’s denial of appellant’s motion to suppress, finding trial court erred in failing to provide defense counsel notice of instructions to be provided to jury but error did not prejudice appellant, finding trial court’s jury instruction on attempted enticement correct statement of the law, finding evidence sufficient)(upholding appellant’s conviction).
  • Little v. Commonwealth, 59 Va. App. 725 (2012)(affirming trial court’s ruling that evidence of value of stolen items exceeded statutorily required limit).
  • Briscoe v. Virginia, 559 U.S. __ (2010)(vacating Briscoe’s convictions for possession with intent to distribute cocaine and unlawful transportation of cocaine into the Commonwealth with the intent to distribute and remanding to the Virginia Supreme Court for further consideration in light of Melendez-Diaz v. Massachuessetts).
  • Cypress/Briscoe v. Commonwealth, 280 Va. 305 (2010)(on remand from the United States Supreme Court, holding Virginia’s former statutory scheme governing the introduction of lab reports into evidence to violate Confrontation Clause of the Sixth Amendment in light of Melendez-Diaz v. Massachusetts; upholding appellant’s conviction on harmless error grounds).
  • Mervin-Frazier v. Commonwealth, No. 2114-08-4 (Va. Ct. App. Apr. 6, 2010) (reversing appellant’s convictions on grounds that defendant’s statements were admitted into evidence in violation of Miranda v. Arizona).
  • Aguilar v. Commonwealth, 280 Va. 322 (Va. 2010)(on remand from the United States Supreme Court, finding no confrontation clause error where prosecution’s failure to call two forensic scientists, who played preliminary roles in a DNA analysis, did not violate Confrontation Clause because they did not author the DNA certificates of analysis at issue or bear testimony against the appellant).
  • Mwangi v. Commonwealth, 277 Va. 393 (2009)(reversing appellant’s felony DUI conviction where trial court erred in allowing unsigned purported prior DUI conviction into evidence).

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